Mayor Bill de Blasio has signed a package of bills into law limiting scheduling flexibility for fast-food and retail employers. New York City is the third major city in the United States, after San Francisco and Seattle, to enact this kind of legislation. The bills require fast-food employers to provide new hires with good-faith estimates of the number of hours that they will work per week and to pay workers a premium for scheduling changes made less than 14 days in advance.

On May 24, 2017, the New York City Council signed a bill banning retail employers in New York City from utilizing “on-call scheduling.” Given the unpredictable fluctuations in customer flow associated with retail business operations, retail employers have historically utilized “on-call” schedules in an effort to manage labor costs associated with running their businesses. Rather than provide employees with fixed work schedules, many retail employers place employees “on-call,” requiring them to call in shortly before their work shift is to start to ascertain if they need to actually report to work. The conflicting interests between retail employers and their employees posed by “on call” scheduling is obvious. Retail employers favor the use of “on-call’ scheduling because it enables them to tailor their workforce to customer needs and avoid excessive labor costs. Employees disfavor “on-call” scheduling for a variety of reasons. First, they are not able to accurately predict their income because they are uncertain as to the number of hours they will actually work each week. Second, the lack of rigid work schedule impacts their ability to plan their day-to-day life. Because they are not certain when they will be required to work, their ability to schedule appointments, attend regular school obligations, or hold a second employment position are impaired.

In January 2015, San Francisco became the first city to pass predictive scheduling legislation, requiring retail employers in that City to pay employees for cancelled on-call shifts and provide notice to their employees of their biweekly schedules. In September 2016, Seattle followed suit, enacting legislation mirroring that in San Francisco. Similar predictive scheduling legislation is presently pending at the federal level as well as in no less than twelve states (California, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon and Rhode Island). By adopting this new law banning on-call scheduling, New York City becomes the most recent jurisdiction to seek to protect retail employees’ interests despite the increased operating costs such predictive scheduling legislation may impose on retail employers

Pursuant to the new law, retail employers in New York City now have to post employees’ work schedules at least 72 hours before the beginning of the scheduled hours of work. The law also precludes retail employers from cancelling, changing or adding work shifts within 72 hours of the start of the shift (except in limited cases). Moreover, each retail employee must be scheduled for no less than 20 hours of work during each 14-day period. In a press release in which he praised the New York City Council for passing the bill and in which he expressed his intent to immediately sign the law, Mayor de Blasio claimed that the law “will ensure that workers will be able to budget for the week ahead, schedule childcare, and plan evening classes.” While the law is clearly intended to help retail employees better balance their professional and personal lives, the strict scheduling requirements will challenge New York City’s retail employers to develop new means of managing their businesses impacted by the unpredictability posed by seasonal demand, customer fluctuation, weather, holidays, employee turnover issues, and other variations in day-to-day retail operations.

Employment Law This Week – a new video program from Epstein Becker Green – has a story this week about on-call shifts and the challenges they’re facing in court.

Both BCBG and Forever 21 have been hit with class-action wage theft suits over on-call scheduling. Many retailers are ending this practice, including Urban Outfitters, which was cited for possible violations of New York’s requirement to pay hourly staff for at least four hours when they report for work.